Written by: Ruth Simoné Gray
31 July 2024
What Is a Cohabitation Agreement?
In South Africa, many couples live together in committed, long-term relationships without formalising their partnership through marriage. While this arrangement, known as cohabitation, is common, it does not grant the same legal protections as marriage. Contrary to popular belief, South Africa does not recognise “common law marriage,” meaning that cohabiting partners do not automatically receive any legal rights over each other’s assets, property, or financial contributions. For those who wish to protect their interests, a cohabitation agreement can be a valuable legal tool. This agreement outlines each partner’s rights and responsibilities, providing clarity and protection in case of separation, death, or other significant life events.
How Does a Cohabitation Agreement Work in SA?
The only way individuals in a long-term relationship who cohabitate can protect their assets in case of a breakup is by entering into a cohabitation agreement. This agreement comprehensively sets out each partner’s rights to the assets accumulated during their relationship, their obligations towards children born of the relationship, and each person’s property ownership rights.
Entering into a cohabitation agreement can ultimately avoid costly litigation, which may ensue when one of the parties wants to sue the other for maintenance or a share of the assets due to their contribution to the household and the relationship.
Who Can Enter into a Cohabitation Agreement?
A cohabitation agreement is recommended for unmarried partners living together long-term, especially those who do not desire to marry soon. This agreement is also recommended for those cohabiting who want to establish guidelines for handling assets and finances during their cohabiting relationship.
You can also enter into a cohabitation agreement with a person you reside with permanently, even if you are not romantically involved with that person.
Should I Enter into a Cohabitation Agreement?
A cohabitation agreement is advantageous if you and the person you are living with acquire property together, and wish to clarify property ownership in case of a breakup or the death of one spouse. You may also enter into a cohabitation agreement with someone you live with permanently without a romantic relationship, provided both parties want an agreement governing shared assets during the cohabitation period and in case of separation.
What Is the Legal Process For Obtaining A Cohabitation Agreement?
To establish a cohabitation agreement, both parties must consent to enter into the agreement and consult with an attorney who can record all the relevant information and draft the agreement. Once the agreement has been drafted and finalised, the parties will sign the agreement before a notary, who will notarise and assign a protocol number.
Unlike an antenuptial contract, a cohabitation agreement is not registered with the Deeds Office. Instead, the notarised original is kept by the parties for safekeeping.
What Clauses Should Be Included in a Cohabitation Agreement?
A comprehensive cohabitation agreement should include, amongst other things, the following:
- Full names and ID numbers of both parties (or passport numbers and birth dates if one party is a foreign national without permanent residency).
- Relationship type between the parties, if any.
- Duration of cohabitation to date.
- Children’s details if any children were born of the relationship, including full names and ID numbers.
- Support provisions, such as emotional, financial, or medical support between the parties.
- Inheritance and donation terms, specifying whether these are shared or retained by the respective parties.
- Financial disclosure, where each party fully discloses their financial position, including assets and liabilities, at the time of signing.
- Expense-sharing terms specify how expenses will be divided, whether on an ad hoc basis or in a schedule setting out the relevant expenses each party is responsible for.
- Asset consequences in the event of the death of one or both parties, although having a will is still advisable to fully capture final wishes.
- Property ownership terms for any immovable property acquired jointly, addressing ownership upon separation or death.
- Termination clause detailing how the cohabitation will end if one party wishes to terminate the agreement.
- Post-termination support, if one party is entitled to financial support after separation or death.
- Notices and addresses for where each party will receive notices related to the cohabitation agreement.
- The entire agreement clause, confirming that the cohabitation agreement contains all relevant terms and that both parties agree it represents their full understanding.
How Long Will a Cohabitation Agreement Last?
Cohabitation agreements commence on the date of signature and terminate only once notice has been given or upon the death of a party. Cohabitation agreements must contain a termination clause specifying how the agreement can be terminated—usually by either party delivering a notice to the other party. This notice must be delivered to the address nominated in the agreement.
What Is the Difference Between An Antenuptial Contract And a Cohabitation Agreement?
An antenuptial contract is for parties who intend to marry and have elected the marital regime to govern their relationship. It is lodged and registered at the Deeds Office to ensure the marriage relationship is governed by the antenuptial contract.
A cohabitation agreement, on the other hand, is notarised and provided with a protocol number but not registered at the Deeds Office. It is suitable for partners who do not intend to marry but want to establish rights over shared assets and claims for maintenance upon the death of one party. In a cohabitation agreement, the parties can specify which assets they wish to retain individually and which are shared, as opposed to a global amount of their separate estates.
If I Decide to Marry, Will The Cohabitation Be Sufficient Or Do I Still Need An Antenuptial Contract?
Where you and your partner decide to marry out of community of property, an antenuptial contract will be necessary to define the monetary aspects of the marriage. This contract will replace the financial terms in the cohabitation agreement, which then becomes unnecessary and may be amended or cancelled.
If you opt for marriage in community of property, your assets will automatically form part of a joint estate, and a cohabitation agreement may no longer be necessary. A cohabitation agreement may still be utilised to set out specific terms regarding expenses, donations, or inheritances; however, these details can also be recorded in a will, making a separate cohabitation agreement unnecessary.
Need a Comprehensive, Legal Cohabitation Agreement Drawn Up? Contact Burger Huyser Attorneys Today
A cohabitation agreement can provide cohabiting partners with essential peace of mind, offering a structured way to manage shared assets, responsibilities, and future arrangements. By clearly outlining financial expectations and ownership rights, this legal document can prevent misunderstandings and protect both parties in the event of separation or unexpected life changes. However, drafting a comprehensive cohabitation agreement requires careful consideration of both partners’ needs and a thorough understanding of legal requirements.
If you need assistance drafting a tailored cohabitation agreement or have questions about your rights as a cohabiting partner, contact Burger Huyser Attorneys. Our experienced family law team, is here to provide the guidance and support you need for a secure and fair partnership arrangement. Schedule an appointment with any of our skilled and professional family lawyers in South Africa or contact us for immediate assistance on the numbers below:
Randburg call 061 516 6878; Roodepoort call 061 516 0091; Sandton call 064 555 3358; Pretoria call 064 548 4838;
Centurion call 061 516 7117; Alberton call
DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE
